Another Net Neutrality Option: Remove Financial Incentives

The FCC, located in a 10-story building called "Portals 2" in Washington, D.C., will likely seek authority to enforce some sort of net neutrality rules. But what should they be?

Google and Verizon made tsunami-sized waves Monday by announcing a joint proposal to create a second, closed, paid internet in addition to the free, open internet, putting heavy pressure on government regulators to do something, anything, to enforce net neutrality.

The Google-Verizon approach purports to keep the current internet “open” and, in fact, would codify in law, for the first time, the notion that all bits on the wired internet should be treated equally, regardless of their origin or destination. Exceptions to those non-discrimination rules would include spam, malware, viruses — and wireless data networks, where net neutrality would not apply under the Google-Verizon proposal.

That proposal’s legion of detractors say building a second, faster internet to deliver premium services would ghetto-ize the current internet. That, they charge, will freeze innovation and, over time, render the “open” internet slow, irrelevant and old by comparison — good only for painstakingly researching pre-2010 culture.

The answer to all of this could be simple: let ISPs prioritize content where doing so makes its customers happy — just don’t let them charge when they do it. Removing financial incentives to mess with the internet could help mitigate the unseen consequences of whatever tampering is soon to happen, like it or not.

Let’s back up for a minute. As things stand now, without a new law from Congress, the FCC doesn’t even have the authority to regulate net neutrality on the internet in the first place. FCC chairman Julius Genachowski originally set up these talks with Verizon, Google and others — talks that the FCC called off after catching wind of Google’s and Verizon’s plan — in the hope of creating support for legislation granting the FCC limited regulatory control over the internet. Now that those talks have failed, such authority is another step away.

One option would be for the FCC to rely on outdated telecommunications law — a scenario Genachowski called “the third way,” which would categorize the internet as telecommunications service (like the phone company) rather than an information service (like Bloomberg). That unilateral move would let the FCC apply some of the old rules governing phone companies to internet service providers.

Under that plan, ISPs might be able to charge content providers that want to pay for faster content delivery based on how far they carry their bits. But as the LA Times points out, doing so would give large ISPs unfair advantages over smaller ones and stifle much-needed competition in the major ISP markets (smaller ISPs are flourishing in rural areas, according to Comscore).

Hopefully, Congress will act so that the FCC doesn’t have to rely on old telecommunications law to legislate something as important and globally unique as the internet.

Google and Verizon unveiled their proposal after a year of closed-door negotiations, and Verizon chief Ivan Seidenberg said he had discussed the proposal with the other carriers, but has not (yet?) encouraged them to throw their weight behind it. Net neutrality is on the table, and is finally the subject of intense public debate, which will pressure the government to enact some kind of legislation.

As FCC commissioner Michael J. Copps said in response to the Google-Verizon proposal, “It is time to move a decision forward — a decision to reassert FCC authority over broadband telecommunications, to guarantee an open internet now and forever, and to put the interests of consumers in front of the interests of giant corporations.”

The government is almost certainly going to do something about net neutrality, the Google-and-Verizon-proposed paid internet, and the dumb routers that have kept everything moving pretty well so far. So, what should it do?

The best thing about the internet, by far, is that its end-to-end nature makes it uncontrollable by the same interests that dominated previous forms of communication, culture, distribution, publication, and so on. Under this school of thought, dumb routers make for smart policy, and adding smart, content-sensitive filters to routers; creating a second, controlled internet for paid services; and/or abandoning net neutrality on the wireless internet will lead us down the road to the internet as a mediated resource, the perfect tool for freedom becoming the perfect tool for control.

The net has always been ruled by its architecture, rather than regulations — a system that has been mostly adequate, aside from a few isolated incidents. Why start regulating now? If anything, the problem with the internet is that it’s too slow. Preventing the ISPs from juggling traffic would make it difficult to establish some degree of fairness between one subscriber who streams video all day, and another who just wants their email to load already. This school of thought might be termed “if it ain’t broke, don’t fix it.”

However, sporadic breaches of net neutrality have already been documented. And while most ISPs have kept their mouths shut about the traffic shaping in which they already almost certainly engage in regularly, one ISP owner we spoke with a few years ago plainly admitted that ISPs, including his own, have been prioritizing certain types of traffic over others for years.

In the spirit of public debate, here’s another proposal, which attempts to balance ISPs’ apparent need to manage traffic with the world’s need not to let big business interests ruin one of mankind’s greatest achievements. If we’re going to mess with the internet, maybe this is how we should mess with it — emphasis on maybe.

ISPs are granted extra wiggle room at their own discretion in terms of which content to prioritize, but cannot accept payment in return for prioritizing one thing over another.

ISPs must grant acceptable access to all websites. The definition of “acceptable access” would be similar to that of pornography — we’d know it when we saw it. The FCC and consumer groups would be able to monitor access speeds and companies could be fined for going beyond the level of “acceptable.” Perhaps a maximum ratio of “fast access” to “slow access” could be established and transparent — say, 3:2.

In order to keep tabs on ISP traffic shaping, an FCC-approved, open-source software standard should be put into place to help users and regulatory agencies including the FCC track the speed of access to websites and online services.

Regardless of what rules go into place, the FCC should take steps to encourage more competition in the ISP space, particularly in larger markets, and possibly regulate peering points to ensure fairness when traffic crosses from one ISP to another. That way, consumers would be able to choose a service that prioritizes, say, gaming or bit torrent over one that prioritizes 3D video streams.

Again, this is just an idea. Any regulation on the internet, whether for or against the concept of net neutrality, is dangerous. We might be dabbling with forces too great to comprehend.

In a November white paper called The Hidden Harms of Application Bias (.pdf), Free Press policy council Chris Riley, argues that even unpaid prioritization of web traffic is dangerous because even if it makes sense today, it might not make sense tomorrow.

“Paid prioritization is the most obviously anticompetitive,” Riley told Wired.com, “but even unpaid prioritization stands to cause harm largely because it locks in the internet as we currently understand it, so it poses a threat to innovation and to new uses of the internet that we might not necessarily understand now to need priority. If you do a tiering system where we take things… and give them priority, it could squeeze out the things that tomorrow need priority that you don’t know about today.”

Vint Cerf, who managed the group that developed the internet's egalitarian communication protocols, is now a Google's vice president and its chief internet evangelist.

The creators of the internet laid down ingenious rules in order to create this accident of history, an end-to-end network that doesn’t discriminate between bits. This might seem as natural as gravity or light to us now, but the fact that it exists in its current form is a secular miracle, arrived at only through careful planning by geniuses.

The approach I suggest above would tamper with that by granting websites and services that win consumers’ votes in the form of traffic and popularity a slight speed boost when an ISP determines that doing so would make its users happiest. And it would ensure that all websites, regardless of popularity, would be accessible at reasonable speeds, while giving ISPs a way to manage demand and increase access speeds for all users, and to differentiate themselves in the marketplace. Large companies wouldn’t be able to pay ISPs for entrance into a fast lane (beyond the current methods of building big data centers, their own fiber networks or paying a worldwide distributor like Akamai), but losing that integrated fast lane might preserve the long-term viability of the “open” internet by forcing all bits to behave by the same rules.

In a way, this scenario is not too far off from what we have now, assuming that Ashdown was right about net neutrality not having actually existed since 1993. Regardless of where people stand on the rest of the issues, they should admit that as of today, with no net neutrality regulations in place, the internet works pretty darn well — even if Google occasionally complains that it’s not always fast enough for YouTube to stream smoothly.

Nonetheless, some sort of legislation is clearly forthcoming, and the FCC acknowledges that the Google-Verizon proposal puts pressure on the FCC to do something soon, if only to avoid giving citizens the impression that companies like Google and Verizon are the real policymakers. We at Wired.com come down on the side of net neutrality as a general principle, which already includes some leeway for prioritizing traffic categories (but not specific sites and services).

The question now is: How should net neutrality be legislated and enforced? You’ve seen another proposal here; feel free to submit your own in the comments section below.

Whatever we do, let’s do it for wireless too

While I and others have viewed the wireless and wired internets as different due to the importance of dealing with wireless bandwidth issues, we shouldn’t — not if we want to port our current wired freedoms into the nascent wireless world, as Wired.com’s Ryan Singel makes clear. Drawing a distinction between wired neutrality and wireless non-neutrality in any net neutrality proposal could put us “in check” — and when everything goes wireless, it’s “checkmate.”